Mediation FAQ

What cases are eligible for mediation?

All civil cases filed in the 10th Circuit except pro se, social security, prisoner rights, and habeas corpus appeals are eligible for mediation.

May I request mediation?

A request for mediation may be made by calling or writing the Circuit Mediation Office at any time during the pendency of the appeal. If a party prefers that a request for mediation be confidential, the Mediation Office will not disclose that the conference was requested. Requested conferences are scheduled and approached in the same manner as those initiated by the Circuit Mediation Office.

How will I know if my case has been set for mediation?

Within fourteen days of filing a notice of appeal, appellants are required by Tenth Circuit Rule 3.4 to file a docketing statement in which they state the issues being raised on appeal and the background of the case. The Circuit Mediation Office schedules a case for a mediation conference from the docketing statement, usually before briefing and sometimes before the transcript is completed. Counsel will receive a Mediation Conference Notice, which is an order of the Court. The Notice sets the date and time of the mediation conference, the purpose of the conference, and the expectations regarding settlement authority.

Is mediation required?

Although mediation conferences are relatively informal, the Court considers them official proceedings and requires the participation of all parties, usually through their counsel. See Pueblo of San Ildefonso v. Ridlon, 90 F.3d 423 (10th Cir. 1996). Participation in the process is mandatory; decisions regarding settlement are, of course, voluntary. Sometimes the mediation will involve discussion and resolution of issues outside the appeal or extend to individuals or groups who are not parties to the appeal. In the latter event, nonparties may be invited to participate, though obviously they are not required to do so.

Is the appellate process stayed during the mediation process?

The appellate process is not automatically stayed during the mediation process. However, the mediator may abate the preparation of the transcript or extend or abate the briefing schedule in order to accommodate the mediation process.

How will the mediation session be conducted?

The mediation may vary depending on the case and the mediator, but generally the discussion is informal and conversational. The primary purpose of the mediation is to explore the possibilities of settlement. Tangentially, it is also used to clarify issues and resolve procedural problems that may interfere with the smooth handling or disposition of the case. The mediation is ordinarily conducted early in the appeal, before briefing. Typically mediation conferences are conducted by telephone, although in some cases counsel and clients are required to attend in person.

The mediator conducts the mediation conference in a series of joint and separate sessions, talking with both sides together and with each side separately. While talking together, typically at the beginning, the mediator usually asks counsel about any procedural questions or problems that could be resolved by agreement. These might include questions about the appendix or the need for a specially tailored briefing schedule. At some point the mediator will shift the discussion to settlement and may explore the issues in the appeal with counsel and the parties in order to help them evaluate the risks on appeal. In many cases a candid examination of these risks is helpful in reaching consensus on the settlement value of the case. The discussions may also turn to matters outside the litigation that are nonetheless important to understanding the nature of the parties’ dispute and to uncover the obstacles to and the avenues toward resolution. The discussions may be with all parties present or with each side privately. The mediator conducts the mediation conference in a series of joint and separate sessions, talking with both sides together and with each side separately. While talking together, typically at the beginning, the mediator usually asks counsel about any procedural questions or problems that could be resolved by agreement. These might include questions about the appendix or the need for a specially tailored briefing schedule. At some point the mediator will shift the discussion to settlement and may explore the issues in the appeal with counsel and the parties in order to help them evaluate the risks on appeal. In many cases a candid examination of these risks is helpful in reaching consensus on the settlement value of the case. The discussions may also turn to matters outside the litigation that are nonetheless important to understanding the nature of the parties’ dispute and to uncover the obstacles to and the avenues toward resolution. The discussions may be with all parties present or with each side privately.

Counsel should set aside at least two hours for the initial mediation conference. In some cases, discussions may go no further. In other cases, follow-up discussions may continue for days or weeks, and sometimes longer. If a settlement is reached, the mediator often sends counsel a stipulation to dismiss or motion for voluntary dismissal. See link to Stipulation to Dismiss and Order of Dismissal. In instances where settlement is not reached but there is agreement about procedural matters (for example, modification of the briefing schedule, consolidation of appeals, abatement, etc.), the mediator will have an appropriate order issued to effect that agreement.

Will the mediation be conducted by telephone or in person?

Typically the mediation conferences are conducted by telephone. However, if the mediator believes it would be useful, parties and counsel may be required to attend an in-person mediation.

Is the mediation confidential?

All communications in the course of a mediation conference or in any subsequent discussions are kept confidential. Nothing said during the discussions is placed in the record or disclosed by anyone to anyone not participating in the mediation process. Counsel and parties may not refer to or quote any statement made during the course of these discussions in their briefs or at oral argument or in any proceeding in any other court. Furthermore, they may not share the content of these discussions with anyone outside the mediation process, such as reporters or other members of the media. 10th Cir. R. 33.1(D). See Clark v. Stapleton Corp., 957 F.2d 745 (10th Cir. 1992). Discussions under 10th Circuit Rule 33.1 may not be recorded by counsel or the parties.

How do I best prepare for the mediation?

The Circuit Mediation Office attempts to identify lead counsel (the attorneys on whose judgment the clients rely when making decisions) for all parties when scheduling conferences. This is not always possible, so addressees are asked to advise the Circuit Mediation Office in advance of the conference when other counsel, or parties, should be involved.

Mediation discussions are most effective when counsel are thoroughly familiar with the issues of the case and have considered how the lower court’s decision may have affected litigation strategy. Prior to the conference, counsel should discuss with their client: 1) realistic goals and expectations for the mediation; 2) a cost-benefit analysis of the risks and costs of further litigation versus settlement, including attorney fee issues; 3) the client’s interests and goals underlying the litigation; 4) ways, both through and apart from continued litigation, those goals and interests might be addressed; and 5) to the extent that the goals and interests of the other parties are known, possible ways that those might be accommodated. Counsel should encourage their client to be prepared to participate fully in the settlement process with a flexible and open-minded attitude. Counsel are encouraged to be creative in generating new settlement options.